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Appeals - Time Extension to Commence

The test for extending time to serve and file an appeal is consistent (below), though it has lately added a new 'overall justice of the case' element. It's also pretty much the same when dealing with time extensions for leave to appeal, or extensions at any stage of the appeal perfection process (discussed in other sections of this Civil Appeals Guide).

. Hughes v. Hughes

In Hughes v. Hughes (Div Ct, 2021) the Divisional Court considered a motion to extend time for leave to appeal:
[11] As held in The Catalyst Group Inc. v. Moyse, 2016 ONSC 554 (Div. Ct.), at para. 2, in deciding whether to grant an extension of time on a motion for leave to appeal, the Court is to consider the following four factors, with overarching regard to the justice of the case:
a. Whether the moving party formed an intention to appeal within the relevant period;

b. The length of the delay and the explanation for it;

c. Prejudice to the responding party; and

d. The merits of the motion for leave to appeal.
....

[21] In Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16 and Catalyst, at para. 13, it was held that “lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal…”

[22] In order to get leave to appeal, Ms. Hughes would have to succeed on one of the two branches of Rule 62.02(4) [SS: Grounds on Which Leave May Be Granted] of the Rules of Civil Procedure.

[23] Under the first branch, Rule 62.02(4)(a), Ms. Hughes would have to show that “there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted”. The conflict between the decisions must be in respect of a conflict in the legal principles applied: Smith v. Smith, 2010 ONSC 2113. Ms. Hughes has not identified any decisions that conflict with the motion judge’s decision.

Under the second branch, Rule 62.02(4)(b), Ms. Hughes would have to show that there appears to be “good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted”. To establish that there is “good reason to doubt the correctness of the decision”, Ms. Hughes would have to show that the decision is open to “very serious debate” and that the matter should be resolved by a higher level of judicial authority: Trade Capital v De Maria, 2015 ONSC 5409, at para. 9.

[24] The primary error identified by Ms. Hughes is her position that the motion judge was biased against her. In support of this position, she points to a statement made by the motion judge in his decision about the non-taxable portion of her income. She also says that the motion judge made certain statements during a pre-hearing conference and the hearing that led her to believe that he had pre-determined the issues on he motion. Mr. Hughes disputes that the motion judge made the statements. There is no transcript from the proceedings.

[25] As held in Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 977, at para. 9, Ms. Hughes has the onus of demonstrating a reasonable apprehension of bias and the test she has to meet is “whether an informed person viewing the matter realistically and practically – and having thought the matter through – would conclude that it was more likely than not that the trial judge, whether consciously or unconsciously, would not decide fairly”. At para. 10, the Court of Appeal also emphasized that this is a heavy burden and that the “strong presumption of judicial impartiality is not easily displaced”. In addition, as held at para. 11, an allegation of apprehension of bias is to be raised as soon as reasonably possible. In this case, the issue was not raised with the motion judge. In addition, while it is evident that Ms. Hughes was not happy with the outcome of the decision and with certain comments made by the motion judge, it is hard to see how she would satisfy the heavy burden of demonstrating a reasonable apprehension of bias.

[26] Looking at the decision as a whole, there is no reason to doubt its corrrectness. Ms. Hughes chose to unilaterally disregard an agreement about shared parenting time. The motion judge considered the circumstances of the case and made factual findings that led him to the conclusion that the “week about” schedule should be restored. There was no error in the legal principles he applied and he was entitled to draw the inferences he made based on the record before him. With respect to the child support issues, the motion judge simply deferred that decision to another date to be decided with the benefit of a better record and better information about Mr. Hughes’s employment circumstances.

[27] On either branch of test under Rule 62.02(4), Ms. Hughes would have to establish that the appeal raises issues of general importance. The proposed appeal raises no such issues. The proposed appeal is limited to the issues between the parties and has no broader legal implications.
. 2582376 Ontario Inc. v. 2227418 Ontario Inc.

In 2582376 Ontario Inc. v. 2227418 Ontario Inc. (Div Ct, 2022) the Divisional Court set out the test for extending time commence an appeal:
[8] There is no dispute between the parties about the proper considerations in a motion to extend the time. They were set out by the Court of Appeal in Enbridge Gas Distribution v. Froese, 2013 ONCA 131, at para. 15, and are quoted in the moving party’s factum at para. 30, as follows:
(a) whether the appellant formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay;

(c) any prejudice to the responding party caused, perpetuated, or exacerbated by the delay; and,

(d) the merits of the proposed appeal.
All of this must be analyzed with a view to the overall justice of the case.
. Savic v. CPSO

In Savic v. CPSO (Div Ct, 2021) the Divisional Court considered a motion to extend time for initiating an appeal:
[44] As set out in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, quoting Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, the test on a motion to extend the time for the delivery of a notice of appeal is well-settled:
The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.
The balance of the case [paras 45-68] is a useful consideration of these criteria of the facts of the case.

. R. v. Murray

In R. v. Murray (Ont CA, 2021) the Court of Appeal consider extending the time to file an appeal:
[3] On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. The court should take into account all relevant considerations, which include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. A lack of merit alone can, in some circumstances, be a sufficient basis for denying an extension of time: Enbridge Gas, at para. 16.
. Teefy Developments (Bathurst Glen) Limited v. Sun

In Teefy Developments (Bathurst Glen) Limited v. Sun (Ont CA, 2021) the Court of Appeal set out the test for extending time for an appeal:
[7] The test for extending the time for an appeal is well-established. Four factors are to be considered, as set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15:
The test on a motion to extend time is well settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal. [Citations omitted.]
....

[16] For the sake of completeness, I will mention the third factor briefly, that is, prejudice to the responding party. There is no prejudice here of the type that would preclude an extension of time. The fact that the responding party may be delayed in enforcing its judgment, and that it will incur legal expenses responding to the appeal, is not the type of prejudice to which the third factor is directed. If it were otherwise, every respondent to a proposed appeal would be able to satisfy the prejudice factor. In my view, this case is distinguishable from Bobel v. Humecka, 2021 ONCA 757, on this very narrow point.
. Echelon Environmental Inc. v. Glassdoor Inc.

In Echelon Environmental Inc. v. Glassdoor Inc. (Ont CA, 2021) the Court of Appeal briefly canvassed the factors to be considered when extending time to file an appeal:
[9] This court will extend the time to serve and file a Notice of Appeal if an extension is required by the justice of the case: 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. The court will generally consider the following factors:
1. Whether the appellant formed a bona fide intention to appeal within the relevant time period;

2. The length of delay in filing and the explanation for it;

3. Any prejudice that would be caused to the responding party by allowing the motion;

4. The merits of the proposed appeal.
See Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26; Leighton v. Best, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 1.

[10] No one factor decides the outcome. All factors must be considered, but how they bear on what justice requires is context-specific: see Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Monteith v. Monteith, 2010 ONCA 78, at para. 20.

....

[16] In general, this court considers only prejudice caused by the delay in filing a notice of appeal, not prejudice that could be caused by the outcome of the appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 6. ....
. Bobel v. Humecka

In Bobel v. Humecka (Ont CA, 2021) the Court of Appeal set out the test for extending time on appeals:
[4] The factors to be considered in granting an extension of time to appeal are set out in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. The court must consider:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay;

(c) any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and

(d) the merits of the proposed appeal.
. Burns v. Brown

In Burns v. Brown (Ont CA, 2021) the Court of Appeal considered extending time for an appeal:
[21] The appellant’s inordinate delay in perfecting his appeal and the absence of a reasonable explanation for most of that delay weigh heavily against his request for an extension. As well, they indicate that he did not maintain an intention to appeal throughout the relevant period of time: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.
. 2650971 Ontario Inc. v. Shameti

In 2650971 Ontario Inc. v. Shameti (Ont CA, 2021) the Court of Appeal extended the time to commence an appeal when the parties only instructed counsel to serve the Notice of Appeal six days after the 30-day deadline. This varies from past doctrine that held that the date of the intent to appeal was key:
[3] The moving parties took certain steps during the 30-day period to determine whether they should appeal the order, including consulting counsel, obtaining an appraisal of the property in dispute, and trying to engage the respondents in a discussion of the appraisal. While the moving parties did not instruct their counsel to initiate an appeal until May 11, I am satisfied that their conduct, when assessed as a whole, indicates that they were strongly contemplating an appeal within the 30-day period. In the circumstances, that satisfies the requirement that they formed an intention to appeal within the relevant period.
. 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc.

In 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc. (Div Ct, 2021) the Divisional Court sets out the time extension test for filing an appeal:
[3] The test on a motion to extend time for filing a notice of appeal is well-settled. As recently stated by van Rensburg, J.A. in 40 Park Lane Circle v. Aiello, 2019 ONCA 451 (CanLII) at para. 2, in the context of the Rules of Civil Procedure but equally applicable to an extension of time under the Construction Act:
[A]ny time limit prescribed by the Rules may be extended on such terms as are just. The factors to be considered in deciding whether to extend time to appeal are: (1) whether the proposed appellant had a bona fide intention to appeal within the prescribed period; (2) the length of and explanation for the appellant’s delay; (3) any prejudice to the respondent from the granting of an extension of time; (4) the merits of the proposed appeal; and (5) whether the justice of the case requires an extension of time. At the stage of considering the justice of the case, the court must consider all of the preceding factors as well as any others that may be relevant, and balance those factors
. Heliotrope Investment Corporation v. 1324789 Ontario Inc.

In Heliotrope Investment Corporation v. 1324789 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered the test for extension of time for commencing an appeal:
[23] Rule 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that an appeal to this court be commenced “within 30 days after the making of the order appealed from”. The court may, however, exercise its discretion pursuant to r. 3.02(1) to extend the time for service of a Notice of Appeal that was not served within the time stipulated by r. 61.04(1).

[24] The test for granting an extension of time to file a Notice of Appeal is well-settled. The factors to be considered are the following:
a. whether the appellant formed an intention to appeal within the relevant period;

b. the length of the delay and explanation for the delay;

c. prejudice to the respondent;

d. the merits of the appeal; and

e. whether “the justice of the case” requires it: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.
[25] As this court held in Bratti v. Wabco Standard Trane Inc., 1994 CanLII 1261 (Ont. C.A.), at p. 3: “While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time to appeal, the governing principle is simply whether the “justice of the case” requires that an extension be given.” See also Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448 (CanLII) 26.
. Lafontaine v. Grant

In Lafontaine v. Grant (Ont CA, 2019) the Court of Appeal enumerates the four criteria for extending time to appeal:
[2] The test applicable on a motion to extend the time to appeal is set out in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 (CanLII), at para. 14. The governing principle is whether the “justice of the case” requires that an extension be given. To that end, courts consider four factors, as applied to the circumstances of the case, together with the overall interests of justice.
. Howard v Martin

In Howard v Martin (Ont CA, 2014) the Court of Appeal re-stated the legal test for extending time to file an appeal as follows:
THE TEST FOR EXTENDING TIME

[26] The test on a motion to extend time for filing a notice of appeal is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
1. whether the moving party formed a bona fide intention to appeal within the relevant period;

2. the length of, and explanation for, the delay in filing;

3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and,

4. the merits of the proposed appeal.
See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII), 2013 ONCA 131, at para. 15, and Rizzi v. Mavros, 2007 ONCA 350 (CanLII), 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.
. Sutherland Lofts Inc. v. Peck

In Sutherland Lofts Inc. v. Peck (Ont CA, 2017) the Court of Appeal briefly restates the criteria to be applied when deciding to grant an extension of time to file an appeal:
[3] The issues the court considers when determining whether to grant an extension of time to appeal are: (1) whether the applicant formed a bona fide intention to appeal within the time limit; (2) the length of and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of a potential appeal; and (5) whether the justice of the case requires that an extension be given. See, for example: Howard v. Martin, 2014 ONCA 309 (CanLII) at para. 26, 42 R.F.L. (7th) 47 (in Chambers); Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (CanLII) at para. 15, 114 O.R. (3d) 636 (in Chambers); and Rizzi v. Mavros, 2007 ONCA 350 (CanLII) at para. 16, 85 O.R. (3d) 401 (in Chambers).





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